Onkar Nath Mondal vs Santi Mondal And Others

Sabyasachi Bhattacharyya, J

The present challenge is directed at the instance of the petitioner against an order passed by the appellate court, reversing an order virtually refusing the prayer of the plaintiff-opposite party no. 1-wife for injunction and granting injunction restraining the petitioner from availing his retirement benefit from the opposite party nos. 2 and 3, his employers, without making proper arrangement for safeguarding the benefit that may be occurred to the opposite party no. 1 upon the fate of the suit, in view of the purported claim of the opposite party no. 1 to be the wife of the petitioner, being yet to be adjudicated.

Learned counsel appearing for the petitioner argues that the Payment of Gratuity Act, 1972, invoked by the appellate court, does not apply to the present case, since the petitioner, being a railway employee, is governed by the Railway Services (Pension) Rules, 1993.

Learned counsel for the petitioner cites a judgment reported at (2006) 9 Supreme Court Cases 643 (Union of India and another Vs. Manik Lal Banerjee) in support of the proposition that if a person is employed with the Central Government, including a railway employee, and is governed by certain rules for payment of gratuity, in the said case the said Rules of 1993, the Act of 1972 does not apply to the said employee of the railways.

By placing reliance on Rules 73 and 74 of the said Rules of 1993, learned counsel for the petitioner argues that there is specific scope of nomination within the ambit of the said Rules of 1993, and as such, the said Act of 1972 could not apply in the present case.

While countering such arguments, learned counsel appearing for the opposite party no. 1-wife submits that the opposite party no. 1 is the legally married wife of the petitioner and has produced a marriage certificate to that effect, although the same has been refuted by the petitioner.

Moreover, it is submitted that the petitioner has obtained an order of maintenance under Section 125 of the Code of Criminal Procedure, which the petitioner-husband is trying to bypass by siphoning off his retiral benefit, thereby leaving no mode of implementation of the alimony order for the opposite party no. 1.

It is thus argued that the appellate court was justified in protecting the rights of the opposite party no. 1, who is claimed to be the wife of the petitioner, by granting injunction restraining the petitioner from availing retirement benefit from his employers without making any proper arrangement of safeguarding the benefit of the opposite party no. 1.

A perusal of Section 2(e) of the said Act of 1972 indicates that the employees entitled to get gratuity under the said Act of 1972 do no include any person, who holds a post of the Central Government or a State Government and is governed by any other Act or by any Rules providing for payment of gratuity.

The said provision, read in conjunction with the cited judgment reported at (2006) 9 SCC 643, makes it evident that since the petitioner was an employee of the railways, which falls within the contemplation of Central Government, as envisaged in Section 2(e) of the Act of 1972, and is governed by the said Rules of 1993, the petitioner is not covered by the provision of the Act of 1972.

Even taking note of the arguments and counter arguments of the parties on the said Rules of 1993, it is evident that Section 71 of the said Rules of 1993 provides that the gratuity payable under Section 70 shall be paid to the person or persons on whom the right to receive the gratuity is conferred by making a nomination under Rule 74.

Rule 74 of the said Rules of 1993 takes within its fold the family of the employee. On the other hand, Rule 70(5) of the said Rules of 1993 provides that for the purpose of that Rule, Rules 71, 73 and 74, "family", in relation to a railway servant means -

i) Wife or wives including judicially separated wife or wives in the case of a male railway servant;

ii) Husband including judicially separated husband in the case of a female railway servant;

iii) Sons including step-sons and adopted sons;

iv) Unmarried daughters including step-daughters and adopted daughters;

v) Widowed daughters including step-daughters and adopted daughters;

vi) Father including adoptive parents in the case of individuals whose personal law permits adoption;

vii) Mother

viii) Brother below the age of eighteen years including step brothers;

ix) Unmarried sisters and widowed sisters including step sisters;

x) Married daughters; and

xi) Children of pre-deceased son.

It is seen that both the wife and unmarried sisters of the railway servant are included within the purview of such definition of the expression 'family'.

Although the wife appears prior to the unmarried sister in order of chronology as set out in the said sub-rule, it is nowhere provided in the Rules that the nomination has to be in that order, in exclusion of the next succeeding categories, as opposed to the Hindu Succession Act and the like.

Rather, it is provided in Rule 71(b) that if there is no such subsisting nomination, only then the gratuity shall be paid in the manner indicated thereinbelow, which takes into account the chronology of the persons mentioned as family in Rule 70(5) of the said Rules of 1993.

In the present case, in view of the petitioner having nominated his unmarried sister as a nominee for the retiral benefits, in any event, the wife does not get precedence, since she was not mentioned as nominee by the petitioner, even if the opposite party no. 1 ultimately establishes her matrimonial relationship with the petitioner.

Moreover, such relationship is yet to be established in the suit itself and the grant of injunction at the present juncture would virtually amount to deciding the suit itself, prematurely declaring the right of the opposite party no. 1 as the legally married wife of the petitioner.

Moreover, there is nothing either in the 1993 Rules or the 1972 Act to prevent an employee from getting his/her retirement benefits even if there is no nomination or no valid nomination in the eye of law.

After all, the right to get pension and other retiral benefits primarily lies with the employee himself/herself and the nomination comes in only in a secondary manner.

As such, the order passed by the appellate court, as well as to some extent by the trial court in the present case, were contrary to law and equity. Moreover, the appellate court was as vague as possible in observing that no retirement benefit would be disbursed to the petitioner "without making proper arrangement for safeguarding the benefit that may occur to the opposite party no. 1 upon the fate of the suit".

Such a phrase is neither here nor there and, if construed in proper light, would virtually amount to an injunction restraining the employers of the petitioner from disbursing his retiral benefits to the petitioner.

In the absence of any law or equitable principle to pass such an injunction, both the courts below acted without jurisdiction in passing the impugned orders.

Whatever rights may accrue to the opposite party no. 1-wife in the event she establishes her matrimonial relationship with the petitioner, in lieu of alimony, the opposite party no. 1 is always entitled under the law to take out appropriate proceedings for execution of the alimony order, if any, passed by a competent court of law without preventing the employers of the petitioner from disbursing the retiral benefits of the petitioner, which the petitioner is entitled to otherwise in law.

The right of the petitioner, to get his retiral benefits, is unfettered by and independent of any claim of alimony that the opposite party no. 1 may have in the event her claim to be the wife of the petitioner succeeds in the suit.

In such view of the matter, the impugned orders suffer from palpable jurisdictional error and infirmity.

Accordingly, C. O. No. 2703 of 2019 is allowed, thereby setting aside the impugned orders and directing the opposite party nos. 2 and 3 to disburse all retiral benefits of the petitioner at the earliest, upon compliance of due formalities by the petitioner, if required in law.

The trial judge is requested to expedite the hearing of the suit and to dispose of the same as expeditiously as possible, preferably within one year from the date of communication of this order to the court below.

There will be no order as to costs.

Urgent photostat certified copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.